U.S. v. Hodge: a case study in the use of the cognitive interview as a means to promote therapeutic jurisprudence in sexual assault cases under the Uniform Code of Military Justice (UCMJ)

I. INTRODUCTION II. FACTUAL BACKGROUND OF U.S. V. HODGE A. The Party B. The Sexual Assault C. The Investigation III. Theories Underlying the Cognitive Interview A. Theory 1: The Cognitive Interview Will Elicit More Information than the Standard Interview B. Theory 2: The Cognitive Interview Promotes Therapeutic Jurisprudence C. Balancing Competing Interests under the Therapeutic Jurisprudence Model IV. APPLICATION AND USE OF THE COGNITIVE INTERVIEW IN U.S. V. HODGE A. The Superiority of the Cognitive Interview B. Use of the Cognitive Interview during the Pretrial Stage of the Court-Martial C. The Use of the Cognitive Interview as Means to Promote Therapeutic Jurisprudence in U.S. v. Hodge V. THE BLUEPRINT: A FIVE-STEP APPROACH TO APPLYING LESSONS LEARNED IN FUTURE CASES A. #1--Collaborate With One Another Early in a Case B. #2--Administer a Cognitive Interview to Elicit Information from a Victim of Sexual Assault C. #3--Interview the Victim Soon After the Sexual Assault D. #4--Record the Interview E. #5--Apply and Practice Therapeutic Jurisprudence

I. INTRODUCTION

Sometime after midnight on 10 August 2013, a man broke into the on-base residence of Ms. A.H (2) located at Grand Forks Air Force Base (AFB). (3) Her husband. Senior Airman (SrA) J.H., an active duty Airman, was deployed at the time. (4) After breaking in, the man brutally raped, sodomized, and tortured A.H. in her bedroom, while her toddler-aged daughter lay asleep in a nearby room. (5) After sexually violating A.H., the man left the house. (6) Because of how dark her room was, A.H. was never able to see the face of her assailant. (7)

Within days of the assault, the victim participated in a "cognitive interview" with an agent from the Office of Special Investigations (OSI). (8) The interview yielded five hours of sensory-specific data that ultimately led investigators to identify the rapist as SrA Jory D. Hodge, an Airman who served in the same unit as SrA J.H. where the two worked closely with one another. (9) Senior Airman Hodge also lived on Grand Forks AFB. (10) When he was caught, he was placed into pretrial confinement. (11) Months later he was convicted and sentenced at a General Court-Marital. (12)

The cognitive interview was not just a step in the investigation, but it was used throughout the pretrial proceedings by the prosecution team. (13) Specifically, the cognitive interview permitted the prosecution to build its case, meet its legal burdens, and promote the mental and emotional health ofthe victim by reducing the number of times she had to relive the specific details ofthe sexual assault. Relying on the cognitive interview instead ofthe victim's live, in-court testimony during the pre-trial proceedings also protected the victim from harsh cross-examination. (14) This process of pursuing justice through the criminal judiciary while minimizing the re-traumatization of the victim in the pursuit of this goal promotes "therapeutic jurisprudence," a theory that considers the law's role in promoting emotional and psychological wellbeing. (15)

This case study will explore the use of the cognitive interview as a therapeutic jurisprudence tool to...